derivative claim in Pennsylvania

2021Where “the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012).

2021Mason, supra. Where “the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012).

2017Where “the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012). “[C]ounsel cannot be considered ineffective for failing to pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999), cert. denied, 530 U.S. 1206 (2000).

2017Where “the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012). “[C]ounsel cannot be considered ineffective for failing to pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999), cert. denied, 530 U.S. 1206 (2000).

2015See Scattaregia v. Shin Shen Wu, 495 A.2d 552 , 553- 54 (Pa. Super. 1985).

2012See, e.g., Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452 , 495 A.2d 552 (1985) (loss of consortium claim is dependent on injured spouse’s right to recover).

2022Consequently, PCRA counsel may not be deemed ineffective for failing to raise prior counsel’s omission.9 See Commonwealth v. Paddy, 609 Pa. 272 , 15 A.3d 431 (2011) (where underlying claim of appellate counsel ineffectiveness cannot succeed, the derivative claim of PCRA counsel ineffectiveness likewise cannot succeed).

2022Consequently, PCRA counsel may not be deemed ineffective for failing to raise prior counsel’s omission.9 See Commonwealth v. Paddy, 609 Pa. 272 , 15 A.3d 431 (2011) (where underlying claim of appellate counsel ineffectiveness cannot succeed, the derivative claim of PCRA counsel ineffectiveness likewise cannot succeed).

2019As the PCRA court observed, “If the underlying or ‘nested’ claim of trial counsel ineffectiveness fails the three-part ineffectiveness test, then the derivative claim that subsequent counsel was ineffective necessarily fails.” PCRA Court Opinion, 8/15/18, at 9 (citing Edmiston, 851 A.2d at 891 ; McGill, 832 A.2d at 1022-23 ).

2007Commonwealth v. Edmiston, 578 Pa. 284 , 851 A.2d 883, 891 (2004) ("If the underlying (or `nested,' to use the term employed in [ Commonwealth v.] Rush ) claim of trial counsel ineffectiveness fails the Strickland/Pierce test, then the derivative claim of appellate counsel ineffectiveness necessarily fails.") (citing McGill, 832 A.2d at 1023 ). [1] It appears that Appellee asked his attorney to make a motion for reconsideration. [2] As discussed below, Halley addressed the loss of "all claims asserted" on direct appeal resulting from counsel's failure to file a Rule 1925(b) statement of matters

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2023Therefore, "[w]hen a Batson claim is not raised at trial, the only collateral challenge available in such a circumstance would be a derivative claim of trial counsel ineffectiveness." Commonwealth v. Blakeney, 108 A.3d 739, 769 (Pa. 2014) (internal citations omitted). 5 Where a Batson claim is raised for the first time during a PCRA proceeding, necessarily in the form of a claim of ineffective assistance of counsel, a defendant "must demonstrate 'actual, purposeful discrimination by a preponderance of the evidence,' as well as meeting the 'performance and prejudice' standard for demonstrating

2020As such, Appellant “cannot raise a derivative claim of ineffective assistance of trial counsel on collateral review.” Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). 9 We note that, even if Appellant had not waived issues four and five, we would conclude that his claims are meritless.

2013PLRB’s Final Order at 6 n.6 (concluding that the section 1201(a)(3) violation was "a derivative violation” of section 1201(a)(1) and declining to address the 1201(a)(1) violation in and of itself); Metropolitan Edison Co. v. National Labor Relations Board, 460 U.S. 693 , 698 n. 4, 103 S.Ct. 1467 , 75 L.Ed.2d 387 (1983) (“Although §§ 8(a)(1) and (a)(3) are not coterminous, a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1).

2013PLRB’s Final Order at 6 n.6 (concluding that the section 1201(a)(3) violation was "a derivative violation” of section 1201(a)(1) and declining to address the 1201(a)(1) violation in and of itself); Metropolitan Edison Co. v. National Labor Relations Board, 460 U.S. 693 , 698 n. 4, 103 S.Ct. 1467 , 75 L.Ed.2d 387 (1983) (“Although §§ 8(a)(1) and (a)(3) are not coterminous, a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1).

2007Commonwealth v. Edmiston, 578 Pa. 284 , 851 A.2d 883, 891 (2004) (“If the underlying (or ‘nested,’ to use the term employed in [Commonwealth v. Rush, 576 Pa. 3 , 838 A.2d 651, 656 (2003) ]) claim of trial counsel ineffectiveness fails the Strickland/Pierce test, then the derivative claim of appellate counsel ineffectiveness necessarily fails.”) (citing McGill, 832 A.2d at 1023 ); accord Commonwealth v. Reaves, 592 Pa. 134 , 923 A.2d 1119 , 1132 n. 14 (2007) (“Because appellee’s underlying claim of VOP counsel ineffectiveness fails, his ‘layered’ claim respecting YOP appeal counsel necessarily

2007Commonwealth v. Edmiston, 578 Pa. 284 , 851 A.2d 883, 891 (2004) (“If the underlying (or ‘nested,’ to use the term employed in [Commonwealth v. Rush, 576 Pa. 3 , 838 A.2d 651, 656 (2003) ]) claim of trial counsel ineffectiveness fails the Strickland/Pierce test, then the derivative claim of appellate counsel ineffectiveness necessarily fails.”) (citing McGill, 832 A.2d at 1023 ); accord Commonwealth v. Reaves, 592 Pa. 134 , 923 A.2d 1119 , 1132 n. 14 (2007) (“Because appellee’s underlying claim of VOP counsel ineffectiveness fails, his ‘layered’ claim respecting YOP appeal counsel necessarily

2023Therefore, "[w]hen a Batson claim is not raised at trial, the only collateral challenge available in such a circumstance would be a derivative claim of trial counsel ineffectiveness." Commonwealth v. Blakeney, 108 A.3d 739, 769 (Pa. 2014) (internal citations omitted). 5 Where a Batson claim is raised for the first time during a PCRA proceeding, necessarily in the form of a claim of ineffective assistance of counsel, a defendant "must demonstrate 'actual, purposeful discrimination by a preponderance of the evidence,' as well as meeting the 'performance and prejudice' standard for demonstrating

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2015In Hill v. Ofalt, 85 A.3d 540 (Pa. Super. 2013), this Court subsequently determined that our Supreme Court would not adopt Section 7.01(d) of the ALI Principles to the extent that it would permit “courts to ignore the corporate form and treat derivative claims as direct claims and allow an individual recovery on a derivative claim.” Id. at 553-556 .

2015In Hill v. Ofalt, 85 A.3d 540 (Pa. Super. 2013), this Court subsequently determined that our Supreme Court would not adopt Section 7.01(d) of the ALI Principles to the extent that it would permit “courts to ignore the corporate form and treat derivative claims as direct claims and allow an individual recovery on a derivative claim.” Id. at 553-556 .

2026See Snyder v. Crusader Servicing Corp., 231 A.3d 20, 31 (Pa.Super. 2020).

2025Commonwealth v. Duffey, 855 A.2d 764, 769 (Pa. 2004).

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2023Therefore, "[w]hen a Batson claim is not raised at trial, the only collateral challenge available in such a circumstance would be a derivative claim of trial counsel ineffectiveness." Commonwealth v. Blakeney, 108 A.3d 739, 769 (Pa. 2014) (internal citations omitted). 5 Where a Batson claim is raised for the first time during a PCRA proceeding, necessarily in the form of a claim of ineffective assistance of counsel, a defendant "must demonstrate 'actual, purposeful discrimination by a preponderance of the evidence,' as well as meeting the 'performance and prejudice' standard for demonstrating

2023In a PCRA proceeding, "an appellant is not entitled to the benefit of the burden of persuasion as to whether there is a race-neutral explanation for the prosecutor's use of peremptory challenges." Reid, 99 A.3d at 459 (citing Uderra, 862 A.2d at 86 ).

2022In his fourth issue, Appellant contends PCRA counsel was ineffective when he failed to allege that trial counsel was ineffective when she raised a ____________________________________________ 9 Our Supreme Court has recognized “the inability of a petitioner to prove each prong of the Pierce test in respect to [appellate] counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim.” Commonwealth v. Tedford, 598 Pa. 639 , 960 A.2d 1, 13 (2008). - 16 - J-S13045-22 medical marijuana claim that had not been preserved in any way.

2022In his fourth issue, Appellant contends PCRA counsel was ineffective when he failed to allege that trial counsel was ineffective when she raised a ____________________________________________ 9 Our Supreme Court has recognized “the inability of a petitioner to prove each prong of the Pierce test in respect to [appellate] counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim.” Commonwealth v. Tedford, 598 Pa. 639 , 960 A.2d 1, 13 (2008). - 16 - J-S13045-22 medical marijuana claim that had not been preserved in any way.

2021Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).

2019Although he urges us that “new factual circumstances cannot defeat a tort claim[,]” see Appellant’s Brief at 29 (citing Dittman v. UPMC, 196 A.3d 1036, 1046 (Pa. 2018)), we agree with EQT that “[Appellant’s] suit … presents a classic factual scenario which would typically give rise to a derivative claim, but in which he asserts a novel duty in an attempt to manufacture a direct claim.” See EQT’s Brief at 21 n.6. - 12 - J-A23026-19 [BCL]….’” Id. at 56 (emphasis in original; citation omitted).

2018See Commonwealth v. Marinelli, 910 A.2d 672, 680 (Pa. 2006) (explaining that “[c]ounsel will not be deemed ineffective for failing to ____________________________________________ 3 Because the thirtieth day of the appeal period, August 18, 2012, fell on a Saturday, Appellant had until Monday, August 20, 2012, to file his petition for allowance of appeal.

2017With respect to the third requirement, a finding of “prejudice” requires the petitioner to show “there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different.” Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999).